Jury Nullification: History, Impact, and Reform Proposals

The role of conscience in the American system of government, particularly concerning the power of jurors, is a critical and historically significant aspect of justice. This power, often referred to as jury nullification, allows jurors to acquit a defendant even when the evidence clearly indicates guilt, essentially saying "no" to criminal punishment they deem unconscionable or excessively harsh.

The Right and Power of Jury Nullification

Jury nullification is the right and power of jurors to acquit against the evidence. This means that if a jury believes a law is unjust, or the punishment for a crime is too severe, they can choose to find a defendant not guilty, regardless of the facts presented. This power is not merely a theoretical concept but has deep historical roots in Anglo-American law.

Historical Precedents

The concept of jury nullification dates back to the 1670s in England with Bushel's Case, where a jury refused to convict, and judges attempted to punish them for it. The ruling ultimately established that jurors could not be punished for their verdicts.

In America, the Zenger case in the 1730s is a famous example. John Peter Zenger was tried for publishing criticisms of the government, which was a crime under the law. However, the jury acquitted him, asserting the principle of freedom of the press.

Pious Perjury

The legal scholar Blackstone referred to a practice in England as "pious perjury." This occurred when juries would deliberately undervalue stolen items to avoid imposing the death penalty for grand larceny. For instance, if stealing an item worth more than a pound was a capital offense, but less than a pound was not, juries would often declare a valuable item (like a horse) to be worth less than a pound. They knew the defendant was guilty but sought to mitigate the savage punishment, demonstrating mercy. This highlights the asymmetry of the system: juries can lessen punishment but never increase it.

Legal Doctrines Supporting Jury Power

Several technical doctrines in American law reflect the jury's right to say no, even against the evidence:

• No Summary Judgment in Criminal Cases: In civil cases, a judge can issue a summary judgment if the evidence overwhelmingly favors one side. This is not permitted in criminal cases.
• No Directed Verdicts in Criminal Cases: Judges cannot direct a jury to find a defendant guilty in a criminal trial, unlike in civil cases where they can direct a jury to find a defendant liable.
• No Overturning Acquittals: After a jury acquits a defendant in a criminal case, a judge cannot overturn that verdict or order a new trial. The principle of double jeopardy prevents retrying the defendant.

These doctrines collectively ensure that if a defendant opts for a jury trial, the jury's decision to acquit is final, reflecting a fundamental right and power of the jury to protect liberty and incorporate juror conscience into the system.

The Unacknowledged Power: A Double-Edged Sword

Despite its historical significance and legal underpinnings, jurors are generally not informed about their right to nullify. This "scary" and "dangerous" power can be used for both admirable and reprehensible purposes.

Positive Uses

• Protecting Liberties: As seen in the Zenger case, jury nullification can protect fundamental freedoms like speech and press.
• Mercy and Justice: Juries can show mercy when they believe the law or its application is too harsh, ensuring that punishment fits the crime in a humane way.

Negative Uses

• Racial Injustice: Historically, jury nullification has been used to perpetuate injustice, particularly against Black individuals. All-white juries have acquitted individuals who committed violent crimes, including murder and rape, against Black victims. A notorious example is the 1955 Emmett Till case, where an all-white jury acquitted his murderers within an hour.

Bringing Jury Nullification into the Open

The argument is made that judges should inform jurors about their power of nullification, explaining both its admirable and disgraceful uses throughout history. This transparency would empower citizens to participate more fully and conscientiously in the justice system. Just as defendants are "Mirandized" about their rights, prospective jurors could be "Zengerized" about jury nullification.

Reforms for a More Just System

To address the potential for misuse and enhance the fairness of the jury system, several reforms are suggested:

1. Diverse Juries: The primary way to prevent unjust nullification (like in the Emmett Till case) is to ensure juries genuinely reflect the diversity of America. Historically, the exclusion of Black citizens from juries led to biased outcomes. A truly representative jury is crucial for equitable justice.
2. Rethinking Unanimity: While unanimity was historically required for juries, this was often because many groups (unpropertied individuals, African Americans, women) were excluded. In a diverse society, expecting unanimous agreement from all jurors might be unrealistic.
   • Civil juries and grand juries often do not require unanimity.
   • The Constitution does not explicitly mandate unanimous verdicts for trial juries.
   • The Supreme Court has even allowed criminal juries with as few as six members, a decision criticized as arbitrary.
   • A potential model could involve a supermajority requirement, such as two-thirds (like in impeachment proceedings) or even nine out of twelve jurors, to convict. This would ensure that early dissenters have a chance to make their case and that convictions are robustly supported.
   • A tiered approach could be implemented: requiring unanimity on day one, then allowing 11-1 or 10-2 after a few days, and ultimately treating anything less than a supermajority (e.g., nine votes to convict) as an acquittal.

Judicial Conscience

The concept of conscience extends beyond jurors to judges. Justices William Brennan and Thurgood Marshall, for example, consistently voted against the death penalty, arguing it was unconscionable, even if not strictly "unusual" in America. Later, Justice Harry Blackmun and Justice Stevens expressed similar sentiments.

This judicial appeal to conscience is also asymmetric: judges can refuse to impose punishments they deem too severe but cannot impose harsher penalties than the law allows. This is particularly relevant in the criminal justice system, where judges directly witness the impact of laws and punishments. They are personally complicit in signing death warrants or imposing mandatory minimums.

Justice Antonin Scalia, a renowned originalist, famously confessed to being a "faint-hearted originalist" when confronted with the idea of upholding punishments like public lashing or branding, even if they were not considered cruel and unusual in 1791. This demonstrates that even strict legal interpreters acknowledge the role of personal conscience when faced with savage punishments.

Ultimately, the American constitutional system relies on the participation of individuals with conscience—jurors, judges, and citizens—to ensure justice and uphold liberty. Recognizing and fostering the role of conscience, particularly in the criminal justice system, is vital for the system to function effectively and justly.